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In defense of Citizens United

TOM BURGUM
Staff Columnist
burgum@lbknews.com

The Supreme Court’s 2009 decision in Citizens United v. FEC is one of the most important First Amendment decisions in three decades and one of the most controversial.  Citizens United, a nonprofit corporation, had planned to use corporate funds to distribute an unflattering film about Hillary Clinton on cable TV during the 2008 presidential campaign.

The Federal Elections Commission (FEC) put the kibosh Citizen’s plans as provisions of the Bipartisan Campaign Reform Act of 2002, (McCain-Feingold) provided for, among other things, an electioneering communications ban that prohibited the showing of a film, or other material, critical of a candidate or office holder within thirty days of a primary election and sixty days of a general election. Citizens United sued the FEC claiming that the law violated its First Amendment right to freedom of speech.

The court, in a surprise decision, came down on the side of Citizens United and heated controversy ensued. The Greek Chorus on the left was unwilling to countenance such a change and began to chant, “Corporations are not people.” The Supreme Court ruling, of course, did not state nor imply that corporations are people. The ruling was people don’t lose their First Amendment rights simply because they have combined with others in a corporation or other legal entity. That is a very different thing.

For some, Citizens United is an invitation for dark, mysterious corporate forces to control our political process. For others, Citizens United is a ringing endorsement of First Amendment rights and a serious blow to those in our political structure who constantly seek ways to ban speech with which they disagree or find discomforting. I am on that side of the fence.

Much of the criticism that followed the decision favorable to Citizens United seemed a bit overheated. Some called it an incredible act of judicial activism while several congressional figures on the left thought it might be a good idea to impeach Chief Justice John Roberts. As a side note, that is just more proof that some Democrats can be just as divorced from reality as those Republicans who talk about impeaching Mr. Obama.

President Obama, not to be left out of the dialogue, proclaimed “the decision reversed a century of law that I believe will open the floodgates for special interests to spend without limits in our elections.” Actually, as we shall see, the decision reversed one rendered just 20 years ago.

The restriction on corporate and union independent expenditures had been around since 1947 but the Supreme Court only ruled on the constitutionality of such a ban in 1990 in Austin v. Michigan Chamber of Commerce. In this case the court upheld Michigan’s ban on independent expenditures by corporations and the result was to prohibit a corporation from publishing books, newspaper articles, pamphlets, or newspaper ads urging the election or the defeat of a candidate for public office.

The Supreme Court decisions prior to Citizens United had adhered to the instrumentalist interpretation of the First Amendment, that is, freedom of speech is not an individual right, but rather, as Supreme Court Justice Stephen Breyer wrote, a way to “encourage the exchange of information and ideas necessary for citizens themselves to shape that public opinion which is the final source of government in a democratic state.” In other words, the First Amendment is important not as an inalienable right of the individual, but as a means to serve a broader public interest and if it be necessary to limit some voices, so be it. Law professor Owen Fisk, accepting that the First Amendment must serve a broader public interest, wrote the government “may even have to silence the voices of some in order to hear the voices of others. Sometimes there is simply no other way.” In other words, it takes a village to silence those with whom we disagree.

The purpose of the McCain-Feingold, according to Senator John McCain, was to “curb the influence of special interests,” and this would be accomplished by “stopping the use of soft money as a means of buying influence and access with federal office holders and candidates.” One must be careful when a public official talks of curbing pernicious influences in our democracy. Most often, they are fulminating against hateful special interests and of course, a hateful special interest as opposed to a beneficial and loveable special interest depends entirely on the political views of the speaker.

The New York Times, a for-profit corporation that routinely advocates for candidates and ideas in the political arena editorialized, “Most wrongheaded of all is its insistence that corporations are just like people and entitled to the same First Amendment rights.” As William R. Maurer wrote in the Weekly Standard, “What the Times and other critics ignore is the wording of the First Amendment: ‘Congress shall make no law . . . bridging the freedom of speech.’ It does not read, ‘Congress shall make no law abridging the freedom of speech of individuals.’ It does not say, ‘Congress shall make no law abridging freedom of speech, except for two or more people.’”

To deny corporations, or individuals within a corporation, Constitutional protections would work a great deal of mischief. The government could seize corporation’s intellectual property without compensation as the corporation would have no Fifth Amendment protection. The Audubon Society’s headquarters could be searched at government whim or government troops could be housed with the National Rifle Association. Neither would have Third or Fourth Amendment protection. Church corporations would lose the religious protection granted in the First Amendment and the ACLU would be free to engage in more mischief on this front that would be good for the country.

All this can be summed up with a line from the Citizens United decision: “If the First Amendment has any force, it prohibits congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”’

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